U.S. Supreme Court asks board to take 'appropriate action' in lawyer's appeal for Ballard

U.S. Supreme Court sends murderer's complaint to Disciplinary Board.

August 11, 2014|By Riley Yates, Of The Morning Call

Pennsylvania legal regulators often receive referrals against lawyers accused of wrongdoing. Rarely, though, do they come from the U.S. Supreme Court.

That's what happened Monday in mass murderer Michael Eric Ballard's case, in which he has accused a Philadelphia attorney of filing an appeal without his authorization and against his wish to be put to death.

In a one-sentence order, the justices referred Ballard's complaint against lawyer Marc Bookman to the Pennsylvania Disciplinary Board for "any investigation or action it finds appropriate" — a move that all but guarantees an investigation will be launched.

"I would say if we had the Supreme Court of the United States saying we should take a look at it for appropriate action, we would definitely take a look at it," said Paul Killion, the chief disciplinary counsel of the board, which oversees Pennsylvania's attorneys.

Asked if he knew of any previous referrals from the nation's top court, Killion said it was at very least rare: "I can't even think of any, to tell you the truth."

The referral comes as Ballard — who massacred four people at a home in Northampton in 2010 — has publicly stated that he wants to abandon his appeals and be executed, including to The Morning Call last month during an exclusive death-row interview.

In June, the Supreme Court threw out the petition Bookman filed on Ballard's behalf, after Ballard wrote the court that it was done behind his back. The justices also asked Bookman to explain why it had even been filed — another rare move that foreshadowed Monday's order.

Bookman is executive director of the Atlantic Center for Capital Representation, a Philadelphia-based nonprofit active in the anti-capital punishment community. He declined to comment Monday, but has defended his actions to the justices, writing that he acted in the "finest tradition of the pro bono bar."

On Monday, Northampton County District Attorney John Morganelli welcomed the referral, saying it may be "unprecedented." Morganelli said that if the Supreme Court hadn't moved, he was planning to file a complaint to legal regulators over Bookman's filing.

"We need a thorough investigation by the Disciplinary Board to see if any rules of ethics were violated," Morganelli said.

But one expert in Pennsylvania's disciplinary process doubts the referral will go far.

Samuel Stretton, a West Chester lawyer who often represents attorneys before the Disciplinary Board, said he would be surprised if Bookman were to face anything more than a private reprimand — the most lenient sanction imposed.

"At worse, it is just an overzealous lawyer who is opposed to the death penalty," said Stretton, who knows Bookman and called him a well-respected attorney doing "God's work."

When Ballard was sent to death row in 2011 Morganelli called him the "poster boy" for the death penalty. The state Supreme Court upheld his sentence in November, citing overwhelming evidence in support of it.

By his own admission, Ballard savagely knifed to death his former girlfriend, Denise Merhi, 39; her father, Dennis Marsh, 62; her grandfather, Alvin Marsh Jr., 87; and Steven Zernhelt, 53, a neighbor who tried to help.

At the time of the June 26, 2010, rampage, Ballard had recently been paroled from prison, where he served 17 years for murdering an Allentown man nearly two decades earlier.

In his interview with The Morning Call, Ballard cast his decision to forgo his appeals as a reasoned choice considering the options before him: to accept his own death, or appeal his sentence for years from the cramped and "dehumanizing" walls of solitary confinement.

"There's no emotionality. There's no apprehension," Ballard told the newspaper on July 10. "I'm not afraid to die."

Ballard said he will fight any lawyer who tries to appear on his behalf against his wishes, and has already barred the successful Federal Community Defender Office in Philadelphia from even visiting him.

The federal defenders have managed to reverse the death sentences of scores of Pennsylvania inmates. In June, one of the attorneys, Billy Nolas, informed Morganelli that he intends to represent Ballard during further legal challenges.

Morganelli has charged Bookman and the federal defenders with fighting for a cause and not a client. In a "pre-emptive strike," Morganelli is now seeking a county court order barring them from the case without Ballard's permission, with a hearing scheduled later this month.

The Disciplinary Board is tasked with ensuring that lawyers live up to their ethical requirements under Pennsylvania's rules of professional conduct. Complaints are investigated by the Office of Disciplinary Counsel, which decides whether formal charges of misconduct are warranted.

If so, the board holds hearings to determine whether to recommend sanctions — which can include censure, probation, suspension or disbarment — to the state Supreme Court.

In defending himself before the U.S. Supreme Court, Bookman said he filed Ballard's petition after being approached by an unnamed attorney from the federal defenders office. Under the circumstances, he said he had "good reason" to believe Ballard had authorized it.

Bookman wrote that he has never faced an allegation of misconduct in more than 30 years of practice, and he dismissed Morganelli's complaints against him.

Morganelli "bases his request for an investigation on the claims of Michael Ballard himself, a man he has previously described as 'deceitful,' 'manipulative,' and 'calculating,' " Bookman wrote, noting the prosecutor also once called Ballard a "mad dog."

"Thus, Mr. Morganelli asks this court to conduct an 'investigation' that will hinge on the contradictory statements of a man with serious mental health disorders whose credibility has been challenged, repeatedly, by Mr. Morganelli," Bookman told the justices.